Williamson v. Fleming

• Decision Date: 06 January 1919
• Docket Number: 9194.
• Citation: 65 Colo. 528,178 P. 11
• Parties: WILLIAMSON v. FLEMING et ux.
• Court: Colorado Supreme Court

178 P. 11

65 Colo. 528

WILLIAMSON v. FLEMING et ux.

No. 9194.

Supreme Court of Colorado, En Banc.

January 6, 1919

Error to District Court, Weld County; Neil F. Graham, Judge.

Action by Mrs. Lulu Williamson against Homer Fleming and wife. Judgment for defendants, and plaintiff brings error. Affirmed.

Allen J., dissenting.

William R. Kelly, of Greeley, for plaintiff in error.

H. E Churchill, of Greeley, for defendants in error.

TELLER J.

The plaintiff in error filed her complaint in an action for damages, and defendants in error demurred to it. The demurrer being sustained, plaintiff in error elected to stand on her complaint, and brings the case here on error.

It is alleged in the complaint that plaintiff had a growing crop on a piece of land about one mile from defendants' home, which land was unfenced on one side that defendants turned their cattle out of their gates into the public highway for the purpose of grazing and feeding upon lands other than their own; that said cattle went upon plaintiff's land, as defendants well knew they would do, and ate, trampled down, and destroyed said crop; that plaiantiff notified defendants of said trespass, and requested them to herd their stock; that defendants refused said request, and continued to turn out their cattle, though they had full knowledge that said cattle so turned out would feed on plaintiff's crop; that defendants intended that said cattle should go on plaintiff's land; and that she has been damaged, etc.

The ground of demurrer was that the complaint did not state a cause of action.

Plaintiff in error relies upon the case of Light v. United States, 220 U.S. 523, 31 S.Ct. 485, 55 L.Ed. 570, in which it is said the question of law here presented was determined. In that case the government obtained an injunction against Light's causing or permitting his stock to go upon a forest reserve unless he had a license to pasture them thereon. The bill charged that Light turned out his cattle with the intention and expectation that they would go to said reserve, and the opinion treats the act of turning out the cattle as equivalent to a driving of them upon the reserve, a willful trespass.

However great may be our respect for the judgments and opinions of the court which rendered the decision in question, we are not authorized to accept as a precedent a holding which, if applied to a cause involving a question of domestic law only, would nullify a state statute; nor are we called upon, in such a case, to disregard an interpretation of said statute by decisions by this court.

The statute of this state at the time of the happening of the things alleged reads:

'Any person making and maintaining in good repair around his or her inclosure, any fence such as described in section 1 of this act, may recover in a suit for trespass, before any court having competent jurisdiction, from the owner of any animal or animals which break through any such fence, in full for all damages sustained on account of such trespass, together with costs of suit; and the animal or animals so trespassing may be taken and held for security for payment of such damages and costs; and no person or persons shall be allowed to recover damages for any injury to any crops or grass or garden products, or other vegetable products, unless the same, at the time of such trespass or injury, was inclosed by a legal and sufficient fence, as before described.' Laws 1885, p. 221, § 3; section 2589, Rev. St. Colo. 1908. This statute was under consideration in Richards v. Sanderson, 39 Colo. 270, 89 P. 769, 121 Am.St.Rep. 167, and it was there held that turning out cattle upon one's own land was not, if they strayed upon adjacent unfenced land, tantamount to a willful driving of the cattle on such lands belonging to another. We there said:

'One who turns his cattle out to graze, unrestrained, upon lands where he had a right to turn them, knowing that they will probably wander on the uninclosed premises of another, is under no obligation to prevent them entering upon such premises, and if they do so enter through following their natural instincts, he is not responsible for the damages occasioned thereby. Martin v. Platte Valley Sheep Co.' 12 Wyo. 432 [76 P. 571, 78 P. 1093]. 'This proposition is clearly applicable to the case of one who does no more than turn his cattle upon the public domain to graze, even though he knows that, following their natural instincts, they may wander upon the uninclosed lands of his neighbor. The plaintiff did turn his cattle upon public domain, in the near vicinity of lands belonging to the defendants. One half of the territory from which they were driven either belonged to the plaintiff or was government land. The other half belonged to the defendants. The plaintiff may have had good reason to believe that his cattle would wander upon the lands of the defendants. This would be natural for the cattle to do. The lands embracing the public domain and that of the defendants were alternate sections covering a large area. He had a right to place them on the public domain or his own land; was under no obligation to restrain them from going upon the lands of the defendants; and therefore he would not be responsible to the latter if they did. Such a case is entirely different from those cited by counsel for defendants, where it appears that the owner of stock willfully pastured it upon lands belonging to another, either by driving or herding thereon.'

Martin v. Platte Valley Sheep Co., cited in the foregoing quotation, is to the same effect, the court holding that the owner of cattle who turned them out on the public domain, or his own land, was not guilty of an actionable trespass, although he knew that to reach water they must go upon the uninclosed land of a neighbor. It is there pointed out that, if the contrary rule prevailed, it would, in effect, prevent the running of cattle at large.

For us to sanction the position taken by plaintiff in error is to create a herd law, and nullify the statute heretofore quoted.

We are satisfied that the rule announced in Richards v. Sanderson, supra, is a correct construction of the statute and of the law as it has been applied in the Western States, where no statutes on the subject had as yet been enacted. Morris v. Fraker, 5 Colo. 425.

The judgment is affirmed.

Judgment affirmed.

ALLEN J. (dissenting).

This is an action for damages for trespass by defendants upon uninclosed or unfenced land of plaintiff. The injury for...